Citation NR: 9802936
Decision Date: 01/30/98 Archive Date: 02/03/98
DOCKET NO. 96-45 045 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Andrew P. Hinton, Associate Counsel
INTRODUCTION
The veteran had active service from April 1969 to November
1970.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a September 1995 rating decision of
the Department of Veterans Affairs (VA) Regional Office in
Buffalo, New York (RO), which denied service connection for
PTSD.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that his PTSD is due to
traumatic and stressful events during service. Reference is
made to the evidence of record as supporting this assertion.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for service connection for
PTSD.
FINDING OF FACT
During service the veteran did not engage in combat with the
enemy, and there is no credible supporting evidence that he
experienced the claimed service stressors upon which the
diagnosis of PTSD was based.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 1991); 38
C.F.R. §§ 3.303, 3.304 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
Service records show that the veteran had active service from
April 1969 to November 1970. His service included a tour of
duty in Vietnam. Service personnel records show that his
primary duties in Vietnam were as a radio operator.
Service medical records contain no records referable to PTSD
or other psychiatric disorder, or to any wound or other
injury. During the November 1970 separation examination the
veteran was clinically evaluated as psychiatrically normal.
There are private medical records of treatment in 1985 and
January 1993 for psychiatric and orthopedic complaints,
respectively. There are various VA medical records
reflecting treatment in 1990 and later for PTSD
symptomatology.
The report of a November 1993 VA psychiatric examination
indicates that the veteran reported a history that while in
Vietnam during the Vietnam Era, the veteran spent most of his
time in the central highlands. He reported he was at Phu Bei
with the 101st Airborne for about six weeks. He was at Hawk
Hill and Duc Fo. The veteran reported that he had been in
some combat situations and occasionally carried a radio on
his back. More often, however, he ran a larger field radio.
He reported that he was at Freedom Hill, where his left leg
was wounded by rocket propelled grenades and rockets. He
reported receiving treatment at both the United First Evac
Hospital and Kramer Compound before returning to the field.
He left Vietnam in October 1970.
The November 1993 examination report noted subjective
complaints, including frequent depression, flashbacks,
intrusive thoughts of Vietnam, difficulty sleeping, and
nightmares. He had repetitive intrusive thoughts and
occasional flashbacks of a massacre he reportedly witnessed
at Uton, in which hundreds of Vietnamese were killed by North
Vietnamese Army soldiers. He reported having dreams about a
friend who was killed in Vietnam. He reported difficulties
in relationships. The veteran was found to be mildly to
moderately anxious during the interview. He was occasionally
spontaneous, had a flat affect, and talked in a rather
halting manner. He indicated that certain occupational
training for his correctional system position elicited some
memories from the service which he did not wish to remember.
Axis I diagnosis was: PTSD, chronic delayed due to service in
Vietnam; alcohol abuse. Axis V Global Assessment of
Functioning (GAF) score was 65 currently, 65 highest.
An associated November 1993 VA social work summary report
indicated that the veteran’s recall of events from his
experiences in Vietnam was poor and lacked substantiation, as
contrasted to his discussion of his post-service work
history, which was very knowledgeable and factual. That
report indicated that the veteran’s suspension from his work
as a corrections officer due to charges of brutality to
inmates, along with the possible death of his daughter,
produced a state of depression in the veteran. The report
indicated that the veteran was bitter toward the state
government, which he accused of not defending him. The
assessment was that the stressors affecting the veteran
appeared to be more family and job related than from trauma
associated with his war experiences in Vietnam. Further
assessment was that the components of PTSD from which the
veteran was suffering were mostly subjective complaints, and
that objective findings were minimal.
In statements (and at a Travel Board hearing in August 1997-
see below), the veteran has reported his claimed stressors.
He stated that while assigned to the 62nd Signal Company, he
was on patrol in about mid May 1970 in the Quang Ngai
Province, when the enemy ambushed his patrol and killed his
close friend, Sergeant [redacted]. In mid-October 1970,
he was wounded in the left knee but never received
recognition for the wound. At that time he was at Freedom
Hill near Da Nang. In June or July 1970, he witnessed a dawn
attack by the North Vietnamese Army at Hawk Hill in which
Vietnamese civilians were killed. Another claimed stressor
was the killing in action of sixteen special forces soldiers.
In February 1970 he witnessed the death of a Hispanic soldier
who was killed when he stepped on a land mine.
The record shows that the United States Army and
Environmental Support Group (ESG) issued a November 1994
letter regarding the veteran’s unit activity and locations
during the period in which he was in Vietnam. In that
letter, the Department of the Army confirmed that a unit
history for the 37th Signal Battalion, the higher
headquarters for the 62nd Signal Company, showed that base
area locations for the 62nd Signal Company were Chu Lai, Hawk
Hill, Duc Pho, and Tam Ky. Da Nang was in the area of
operations of the unit. The veteran’s unit provided signal
support to the 196th Light Infantry Brigade, 11th Infantry
Brigade, XXIV Corps, and Military Assistance Command, Vietnam
advisory personnel.
The Department of the Army verified that Sergeant [redacted]
[redacted] was killed in action in May 1970 and was assigned to
the 11th Infantry Brigade at the time he was killed. The
letter noted that an enclosed history did not document enemy
attacks against the base area locations listed, but that U.S.
Army combat unit records documented attacks at Da Nang, Hawk
Hill, Quang Ngai, Tam Ky, and Chu Lai during the time periods
provided by the veteran. However, no enemy attack was
documented at Duc Pho during the claimed time period. The
Department of the Army was unable to confirm the claimed
death to a “Hispanic” soldier or the other sixteen casualties
claimed by the veteran. The letter also stated that the
Department of the Army was unable to confirm that the veteran
was ever wounded in action, and that it would be unlikely
that it could be confirmed that the veteran was in close
proximity to Sergeant [redacted] when that soldier was killed in
action.
In August 1997, the veteran testified at hearing that he had
known Sergeant [redacted] from basic training and was present when
Sergeant [redacted] was killed. The veteran indicated this was a
major stressor for him. The veteran also related when he
witnessed a massacre at the village of Bih Rehn or Phu Ton
near Hawk Hill in the central highlands. He stated that in
October 1970, he was wounded near Da Nang or Freedom Hill,
when an explosion knocked him out of bed and he was wounded
in his left knee. The veteran stated that in May 1970 he was
almost killed in Chu Lai when a corsair jet crashed nearby,
and that in that same month he experienced one of the largest
rocket attacks of the year in Vietnam. He related that he
was in an ambush and that he witnessed an attack by a child
on a jeep. The veteran also testified as to his psychiatric
symptomatology.
Analysis
The veteran's claim for service connection for PTSD is well
grounded, meaning it is plausible. 38 U.S.C.A. § 5107(a).
The relevant evidence has been properly developed to the
extent possible, and there is no further VA duty to assist
the veteran with this claim. Id.
Service connection may be granted for a disability which is
due to a disease or injury which was incurred in or
aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §
3.303. Service connection for PTSD requires medical evidence
establishing a clear diagnosis of the condition, credible
supporting evidence that the claimed in-service stressor
actually occurred, and a link, established by medical
evidence, between current symptomatology and the claimed in-
service stressors. 38 C.F.R. § 3.304(f) (1996); See also
Zarycki v. Brown, 6 Vet. App. 91, 97 (1993). At a minimum, a
‘clear diagnosis’ should be an ‘unequivocal’ medical opinion
of a current PTSD diagnosis. Cohen v. Brown, 10 Vet.
App. 128, 139, 140 (1997).
The regulations governing service connection for PTSD differ
slightly from those for other conditions because they require
evidence of an in-service stressor, as opposed to evidence
that a disease or injury was incurred or aggravated during
service or within a presumptive post-service period. Compare
38 C.F.R. § 3.304(a) with 38 C.F.R. § 3.304(f); see Moreau v.
Brown, 9 Vet. App. 389, 396 (1996). This is partly because
PTSD is more commonly not manifested during service, or even
shortly after service, but rather appears after a lapse of
time following exposure to traumatic or stressful events.
The type of evidence necessary for verifying that the
veteran’s claimed in-service stressor actually occurred
varies, depending on whether or not the veteran was “engaged
in combat with the enemy.” See Hayes v. Brown, 5 Vet. App.
60, 66 (1993). If it is determined through a military
citation or other supporting evidence that a veteran engaged
in combat with the enemy and that the claimed stressors are
related to combat, the veteran’s lay testimony regarding the
reported stressors is accepted as conclusive evidence as to
their actual occurrence, and no further development or
corroborative evidence is necessary, provided that the
testimony is satisfactory, e.g., credible, and “consistent
with the circumstances, conditions, or hardships of such
service.” 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. §
3.304(d)-(f).
However, if a veteran did not engage in combat with the
enemy, or the claimed stressor is not related to combat, then
the requirement of 38 C.F.R. § 3.304(f) for “credible
supporting evidence” means that as a matter of law, the
veteran’s lay testimony alone is not enough to establish
occurrence of the alleged noncombat stressor. Nor is a
medical opinion enough to establish the occurrence of a
stressor. In such cases, the record must contain service
records or other corroborative evidence which substantiates
or verifies the veteran’s testimony or statements as to the
occurrence of the claimed stressors. See Moreau, 9 Vet. App.
at 395; Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996);
Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However,
“credible supporting evidence” need not be service department
evidence. See Doran v. Brown, 6 Vet. App. 283, 288-291
(1994).
In the present case, the veteran’s service medical records
reveal no evidence relating to symptoms of PTSD, or of any
combat wounds or other indications that the veteran was
involved in combat. Moreover, the veteran’s service records
do not contain any citations or other supporting evidence to
show that the veteran was engaged in combat. Therefore, the
veteran’s statements regarding the reported stressors cannot
be accepted without corroborative evidence as conclusive
evidence to their actual occurrence.
Furthermore, the record does not contain any service records
or other corroborative evidence which substantiates or
verifies the veteran’s testimony or statements as to the
occurrence of the claimed stressors. While the report from
ESG confirms the death of Sergeant [redacted] in action, and
confirms locations of the veteran’s unit which are generally
consistent with the veteran’s statements, that report does
not provide any verification that any of the claimed specific
stressors occurred, or that the veteran was wounded as he
claimed. There is no verification that the veteran witnessed
a massacre involving a Vietnamese village or the death of
Sergeant [redacted].
The primary impediment to service connection is the absence
of a valid service stressor. The veteran's service records
do not show that he engaged in combat with the enemy. The
existence of a valid service stressor is a factual question
for VA adjudicators, who are not bound to accept a veteran's
uncorroborated accounts of alleged stressors, particularly
where, as here, there has been a considerable passage of time
between putative stressful events recounted by the veteran
and the onset of alleged PTSD. Wood v. Derwinski, 1 Vet.
App. 190 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992).
Based on the evidence of record, the Board concludes that
despite the veteran’s contentions, he has presented no
competent evidence to corroborate his claimed inservice
stressors that formed the basis of the diagnosis of PTSD.
See 38 C.F.R. 3.304(f). Specifically, the November 1993 VA
examination report, which contains the only recorded
diagnosis of PTSD due to service in Vietnam, listed the
several claimed stressors on which the diagnosis was
presumably based. None of the claimed in-service stressors
listed in that report have been verified by credible
supporting evidence.
In summation, the diagnosis of PTSD is unsupported by the
record, based on unreliable and unverified information
provided by the veteran. As such, without a confirmed in-
service stressor, the diagnosis is not valid for compensation
purposes. As noted in Swann v. Brown, 5 Vet. App. 229, 233
(1993), the examiner’s diagnosis can be no better than the
facts alleged by the veteran. Because the opinion was based
upon an unverified factual premise, it has no probative
value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Since
there is no competent evidence of a verifiable stressor that
would serve as a basis for a diagnosis of PTSD that is
related to military service, the claim must be denied.
ORDER
Service connection for PTSD is denied.
R. F. WILLIAMS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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